Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23406/94

by Bahram ZARRINNEGAR

against Sweden

The European Commission of Human Rights sitting in private

on 14 April 1994, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

F. ERMACORA

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 4 February

1994 by Bahram ZARRINNEGAR against Sweden and registered on 4

February 1994 under file No. 23406/94;

Having regard to the report provided for in Rule 47 of the

Rules of Procedure of the Commission;

Having regard to the observations submitted by the

respondent Government on 28 February 1994 and the observations

in reply submitted by the applicant on 18 March 1994;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the parties, may be

summarised as follows.

The applicant is an Iranian citizen, born in 1966, and

currently residing in Sweden. Before the Commission he is

represented by Mr. Per Stadig, a lawyer practising in Stockholm.

A. The particular circumstances of the case

The applicant grew up in the family home in Teheran where

his mother runs a pharmacy. He has four brothers and a sister.

His brother Naser came to Sweden in 1986 and applied for asylum

on the ground that he had been drafted for military service in

the war between Iran and Iraq. He was granted a permanent

residence permit and became a Swedish citizen on 22 September

1993. Parviz Zarrinnegar, also one of the applicant's brothers,

came to Sweden in July 1990 and applied for asylum. However, his

application was rejected and he was expelled to Iran on 3 April

1993. The applicant submits that Parviz disappeared upon arrival

in Iran.

The applicant's brother Khosro arrived in Sweden in January

1992 and applied for asylum. The Aliens Appeals Board

(Utlänningsnämnden) decided on 8 March 1993 not to grant him

permission to stay in Sweden. The decision to expel him has not

yet been enforced.

The applicant's fourth brother, Nader, allegedly disappeared

in Iran in 1988/89. The applicant submits that Nader was

imprisoned for a year and that the family was informed in March

1989 of his whereabouts, namely when he was found in a hospital.

Nader died there just before 21 March 1989.

The applicant's mother and sister are living in Iran.

The applicant's family was allegedly often harassed in Iran

by members of the revolutionary guard as the family was

considered to be against the present regime there. The applicant

submits that he was arrested and ill-treated on several

occasions, the first time in 1985 when he was arrested in school

and detained for a week. The second time was in September 1990.

He was released after 20 minutes following which the applicant

was allegedly taken to a mountain site and beaten up for some

hours before being left there.

The applicant's third arrest was allegedly in

October/November 1990 when he was sent to prison after having

tried to help his sister who was being harassed by members of the

revolutionary guard. The applicant remained in prison for

approximately three months and submits that he was subjected to

daily questioning and tortured on several occasions, inter alia,

by being hung upside down and being forced to walk on broken

glass. In February 1991 he was released from prison and sent to

a military camp in an area inhabited by Kurds. The applicant

considered this to be some sort of military service, but he

managed to escape and return to Teheran in June 1991. He remained

there until he left for Sweden in July 1991.

Prior to his third arrest the applicant had, on 22 October

1990, applied for a three-month visa at the Swedish Embassy in

Teheran in order to visit his brother Naser. At that time he held

an Iranian passport, issued to him on 21 February 1990 and valid

until 21 February 1993. The applicant submits, however, that it

was a forged passport he had bought and which he subsequently

sold to the forger when he learned that his request for a visa

had been turned down by the Swedish authorities.

Accordingly, the applicant left Iran without a passport or

other travel documents via Dubai airport and arrived at Arlanda

airport near Stockholm on 19 July 1991. He applied, inter alia,

for a residence and work permit referring to his own and other

family members' situation in Iran. He also maintained that he had

been a member of a pro-Shah organisation since 1988.

On 26 November 1991 the National Immigration Board (Statens

Invandrarverk) rejected the application, stating as follows:

(Translation)

"(The applicant) entered Sweden on 19 July 1991 and applied

for asylum here. In support of his application he refers in

particular to the following: Since 1985 he has supported an

illegal royalistic organisation and became a member thereof

in 1988. (The applicant) drafted leaflets and wrote

catchwords on walls. He also distributed portraits of the

Shah's son and participated in several demonstrations. (The

applicant) has been arrested on several occasions. The

revolutionary guards have also searched the family home on

several occasions. In November 1990 he was arrested when he

tried to help his sister who was being harassed by the

guards. He remained detained until February 1991 when he

was sent to a military camp. In June 1991 he managed to

escape from the military service to Teheran, assisted by a

Kurdish family. He remained there until he left Iran. (The

applicant) submits that he has never had a genuine

passport.

The Immigration Board considers that (the applicant's)

submissions are exaggerated in substantial parts and not

trustworthy. (The applicant) has submitted that he was

arrested on several occasions since 1985, sometimes up to

25 days. His brothers have been detained and the family

home searched several times. The Board considers that it is

unlikely that (the applicant) could carry out political

activities in such circumstances. On 22 October 1990 (the

applicant) applied for a visa at the Embassy in Teheran and

submitted a passport valid until 21 February 1993.

In these circumstances the Board cannot find that (the

applicant) has a right to asylum under Chapter 3, Section

1 of the Aliens Act (Utlänningslagen). Furthermore, a need

for a particular strong protection has not been disclosed

either."

The applicant appealed against this decision to the Aliens

Appeals Board and an oral hearing was held on 15 January 1992

where the applicant, assisted by counsel, had the opportunity to

submit what, in his opinion, would be of relevance to the outcome

of the case. On 8 March 1993 the Aliens Appeals Board, however,

rejected the applicant's appeal, stating as follows:

(Translation)

"The Board finds that (the applicant) during the

proceedings has made contradictory statements in support of

the request for asylum. He has inter alia made

contradictory statements concerning how he was ill-treated

when (his brother Khosro) was wanted by the authorities and

how he used the passport at the Swedish Embassy in Teheran.

Already due to this the Board finds reason to question his

story.

When (the applicant) came to Sweden he did not have a

passport. His explanations concerning the reasons for this

cannot lead to any other conclusion than that he did have

a passport but disposed thereof in order to conceal

circumstances of particular importance to the examination

of his right to asylum here. This gives reason to reduce

the credibility of the information which he has submitted

in support of his application for a residence permit. The

Board also notes that (the applicant) according to the

investigations made, used a national passport of 21

February 1990 when he applied for a visa to Sweden.

The Board furthermore notes that (the applicant's)

allegations that he travelled from Dubai in the United Arab

Emirates to Sweden without a passport is unlikely and that

he has submitted divergent information about his journey.

The Board considers, having regard to the case as a whole,

that what (the applicant) has submitted and what has

otherwise been brought forward in the case, does not give

reason to believe his allegation that he is in need of

asylum here."

On 31 January 1994 the applicant submitted a new request for

asylum to the National Immigration Board. He now submitted, in

addition to his previous allegations, copies of two Iranian

documents of 12 October 1992 and 28 November 1993 from which it

appeared that the Iranian authorities were looking for him. He

also submitted a letter from the Iranian Women's Organisation in

Sweden supporting the applicant's application.

On 2 February 1994 the Immigration Board rejected the

application, stating as follows:

(Translation)

"The Immigration Board questions whether the documents

dated 12 October 1992 and 28 November 1993 are genuine,

firstly because they have been submitted very late,

secondly since no plausible explanation has been submitted

how (the applicant) got hold of these documents and,

thirdly, because the document of 12 October 1992 is an

internal note between the authorities. The Immigration

Board thus questions that this would be sent to (the

applicant's) family.

Furthermore, the Immigration Board considers that the

submission that (the applicant's) brother, Parviz, who was

expelled to Iran on 3 April 1993, had disappeared cannot be

believed since the Board has not been informed thereof

earlier. In one way or the other this information ought to

have been submitted to the Immigration Board by the

relatives living here.

Furthermore, a document from the Iranian Women's

Organisation in Sweden has been submitted. In this it is

inter alia stated that (the applicant) has worked actively

in Kurdistan in order to liberate the Iranian Nation.

Furthermore, it is submitted that a brother to (the

applicant) has disappeared upon return to Iran and that a

return of (the applicant) would be fatal to him.

The information the applicant has submitted in support of

his request for asylum is still not credible. The

circumstances referred to are thus not of a kind which

could lead to a change in a decision to reject the

application which has acquired legal force.

Particular reasons of a humanitarian kind for granting a

residence permit are not at hand either."

Following the applicant's application to the Commission on

4 February 1994 the National Immigration Board decided to stay

the execution of the expulsion order pending the Commission's

decision in the matter. The applicant, who had been detained with

a view to expulsion to Iran, was furthermore released.

B. Relevant domestic law

Under Chapter 2, Section 5, subsection 3, of the Aliens Act

a request for a residence permit lodged by an alien, who is to

be refused entry or expelled by a decision which has acquired

legal force, may only be granted if the request is based on new

circumstances and the applicant is entitled to asylum and there

are weighty humanitarian reasons for allowing him to stay in

Sweden.

Under Chapter 3, Section 1, an alien may be granted asylum

because he is a refugee (para. 2) or, without being a refugee,

if he wishes not to return to his home country because of the

political situation there and provided he can put forward weighty

reasons in support of his wish (para. 3). The term "refugee"

refers to an alien who is staying outside the country of which

he is a citizen because he feels a well-founded fear of being

persecuted in that country, having regard to his race,

nationality, membership of a special social group or his

religious or political convictions, and who cannot or does not

wish, on account of his fear, to avail himself of his home

country's protection (Chapter 3, Section 2).

An alien, as referred to in Chapter 3, Section 1, is

entitled to asylum. Asylum may, however, be refused inter alia

if, in the case of an alien falling under Chapter 3, Section 1,

para. 3, there are special grounds for not granting asylum

(Chapter 3, Section 4). An alien may be refused entry into Sweden

if he lacks a visa, residence permit or other permit required for

entry, residence or employment in Sweden (Chapter 4, Section 1,

para. 2). When considering whether to refuse an alien entry or

to expel him, it must be examined whether he, pursuant to Chapter

8, Sections 1-4, can be returned to a particular country or

whether there are other special obstacles to the enforcement of

such a decision (Chapter 4, Section 12). A refusal of entry

issued by the National Immigration Board may be combined with a

prohibition on return for a specific period of time (Chapter 4,

Section 14). In reviewing a question of refusal or entry or

expulsion, the Aliens Appeals Board may also issue a prohibition

on return for a specific period of time (Chapter 7, Section 5,

subsection 2).

Under Chapter 7, Section 10, the National Immigration Board

may review its decision if new circumstances have emerged or for

any other reason, provided it would not affect the alien

negatively or be irrelevant to him. A review may take place even

if an appeal to the Aliens Appeals Board has been lodged against

the decision. Once the National Immigration Board has transmitted

the file to the Aliens Appeals Board it may only review its

decision if its opinion is requested by the Aliens Appeals Board

(Chapter 7, Section 10). The National Immigration Board or the

Aliens Appeals Board may refer a case to the Government together

with its opinion in the matter (Chapter 7, Section 11).

An alien who has been refused entry or who is to be expelled

may never be conveyed to a country where there is firm reason to

believe that he would be in danger of being subjected to capital

or corporal punishment or torture, or to a country where he is

not protected from being sent to a country where he would be in

such danger (Chapter 8, Section 1).

When a refusal of entry or an expulsion order is put into

effect, the alien may not be sent to a county where he would risk

being persecuted, or to a country where he would not be protected

from being sent on to a country where he would risk being

persecuted (Chapter 8, Section 2, subsection 1). An alien may,

however, be sent to such a country if he cannot be sent to any

other and if he has shown, by committing a particularly serious

offence, that public order and safety would be seriously

endangered by his being allowed to remain in Sweden. However,

this does not apply if the threatened persecution in the

receiving State implies danger to his life or is otherwise of a

particularly grave nature. Similarly, the alien may be sent to

a country referred to in subsection 1 if he has engaged in

activities endangering the national security of Sweden and if

there is reason to suppose that he would continue to engage in

such activities in Sweden and he cannot be sent to any other

country (subsection 2).

If the enforcement is not subject to any obstacles under,

inter alia, Chapter 8, Sections 1 and 2, an alien who has been

refused entry or who is to be expelled is to be sent to his

country of origin or, if possible, to the country from which he

came to Sweden. If the decision cannot be put into effect in the

manner indicated in subsection 1, or there are other special

grounds for doing so, the alien may be sent to some other country

instead (Chapter 8, Section 5).

When considering a request for a residence permit lodged by

an alien to be expelled according to a decision which has

acquired legal force, the National Immigration Board (and in

certain cases the Government too) may stay execution of that

decision. For particular reasons, the Board may also otherwise

stay execution (Chapter 8, Section 10).

If the enforcing authority finds that enforcement cannot be

carried out or that further information is needed the authority

is to notify the National Immigration Board accordingly. In such

a case, the Board may decide on the question of enforcement or

take such other measures as are necessary (Chapter 8, Section

13).

COMPLAINTS

The applicant complains that his expulsion to Iran would

violate Article 3 of the Convention. He claims that he risks

persecution on account of his own, as well as his family's

political activities.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced and registered on 4 February

1994. On 4 February 1994 the President of the Commission decided

pursuant to Rule 36 of the Commission's Rules of Procedure, to

indicate to the respondent Government that it was desirable in

the interest of the parties and the proper conduct of the

proceedings not to return the applicant to Iran until the

Commission had had an opportunity to examine the application.

The President further decided, pursuant to Rule 34 para. 3

and Rule 48 para. 2 (b), to bring the application to the notice

of the respondent Government and to invite them to submit written

observations on the admissibility and merits.

The Government's observations were submitted on 28 February

1994. On 10 March 1994 the Commission prolonged the President's

indication under Rule 36 until 15 April 1994.

The applicant's observations in reply to those of the

Government were submitted on 18 March 1994.

THE LAW

The applicant complains that, if returned to Iran, he risks

persecution in view of his and his family's political activities.

He invokes Article 3 (Art. 3) of the Convention which reads:

"No one shall be subjected to torture or to inhuman or

degrading treatment or punishment."

The Government do not raise any objections in respect of the

six months' rule set out in Article 26 (Art. 26) of the

Convention and leave it to the Commission to decide whether

domestic remedies have been exhausted, having regard to the fact

that it is always possible to lodge a new request for a residence

permit with the National Immigration Board which must deal with

it, provided there are new circumstances which could call for a

different decision.

As regards the substance of the application the Government

point out that an alien's right to enter and reside in a

particular country is not as such guaranteed by the Convention,

nor is the right to political asylum. However, the Government

acknowledge that where substantial grounds have been shown for

believing that the person could, if extradited or expelled, face

a real risk of being subjected to treatment contrary to Article

3 (Art. 3) in the country of destination the responsibility

therefor would lie with the country extraditing or expelling the

alien concerned.

The Government submit that the provisions on enforcement in

the Swedish Aliens Act reflect almost exactly the same principles

as have been outlined by the European Court of Human Rights when

applying Article 3 (Art. 3) to extradition cases or to cases

concerning expulsion. Under Chapter 8, Section 1 of the Aliens

Act an alien refused entry or expelled may never be sent to a

country where there are substantial grounds to believe that he

would be in danger of suffering capital or corporal punishment

or of being subjected to torture, nor to a country where he is

not protected from being sent to a country where he would be in

such danger. Thus, the Swedish immigration authorities have

applied almost the same test as the Commission is carrying out

when applying Article 3 (Art. 3) to the present case.

In the circumstances of the present case the Government rely

on and agree with the opinions of the Swedish immigration

authorities and the reasons they have invoked. Thus, the

Government maintain that no substantial grounds have been shown

for believing that the applicant would face a real risk of

treatment contrary to Article 3 (Art. 3) of the Convention if

expelled to Iran.

The applicant maintains that the facts of the case disclose

substantial grounds for believing that he would be subjected to

treatment contrary to Article 3 (Art. 3) of the Convention if

returned to Iran. He has been arrested and ill-treated on several

occasions due to his political activities and it is undisputed

that he and his family have been harassed for years by the

Iranian authorities because of this. One of his brothers has died

in Iran and another brother has disappeared after being returned

from Sweden to Iran.

The applicant furthermore maintains that the Swedish

Government have totally misinterpreted the political situation

in Iran. According to information from the United Nations, almost

20,000 persons are incarcerated today in Iran for political

reasons. Accordingly, there is every reason to believe that the

facts as submitted by the applicant disclose reason to fear

treatment contrary to Article 3 (Art. 3) of the Convention.

As regards Article 26 (Art. 26) of the Convention the

Commission finds that the applicant has, in the circumstances of

the case, fulfilled the requirements of the exhaustion of

domestic remedies.

As regards the applicant's complaint made under Article 3

(Art. 3) of the Convention the Commission recalls that the

Contracting States have the right to control the entry, residence

and expulsion of aliens. The right to political asylum is not

protected in either the Convention or its Protocols (Eur. Court

H.R., Vilvarajah and Others judgment of 30 October 1991, Series

A no. 215, p. 34, para. 102). However, expulsion by a Contracting

State of an asylum seeker may give rise to an issue under Article

3 (Art. 3) of the Convention, and hence engage the responsibility

of that State under the Convention, where substantial grounds

have been shown for believing that the person concerned would

face a real risk of being subjected to torture or to inhuman or

degrading treatment or punishment in the country to which he is

to be expelled (ibid., p. 34, para. 103). A mere possibility of

ill-treatment is not in itself sufficient (ibid., p. 37, para.

111).

When considering this issue the Commission attaches

importance to the fact that the Swedish authorities appear to

have gained considerable experience in evaluating claims of the

present nature by virtue of the large number of Iranian asylum

seekers in Sweden. It notes that residence permits have in fact

been granted in numerous cases and that the authorities are

obliged to consider essentially the same factors as are relevant

to the Convention organs' assessment under Article 3 (Art. 3) of

the Convention. The Commission observes, in particular, that

Chapter 8, Section 1, of the Aliens Act also imposes an absolute

obligation on the enforcement authority in Sweden to refrain from

expelling an alien should the human rights situation in the

receiving country constitute a firm reason to believe that he

would be in danger of being subjected to capital or corporal

punishment, or torture, in that country (cf. No. 20981/92, Dec.

8.4.93 and No. 21808/90, Dec. 8.9.93, both unpublished).

The facts of the present case moreover disclose that the

decision to expel the applicant was made after careful

examination of his case, including an oral examination where the

applicant, assisted by counsel, had the opportunity to submit and

clarify everything which was of importance to the case. Having

regard to the outcome thereof the Commission shares the

Government's considerable doubts as to the credibility of the

applicant's story and finds on the whole that his account of his

background in Iran and escape to Sweden contains a number of

inconsistencies.

In these circumstances the Commission concludes, on the

evidence before it concerning the applicant's personal situation

and the general situation in Iran today, that he has failed to

show that the Swedish authorities would expose him to a serious

risk of treatment contrary to Article 3 (Art. 3) of the

Convention should they expel him to Iran (cf. also No. 16381/90,

Dec. 14.10.91, unpublished).

It follows that the application must be rejected as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the

Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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ZARRINNEGAR v. SWEDEN

ZARRINNEGAR v. SWEDEN

LEXI